Ayscough drew a distinction to the previous example: there was a positive action, whereas in this case there was none.

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Facts

In Doige’s case, “The plaintiff had agreed to purchase land from the defendant, and had prepaid the purchase price of £100; the defendant in his turn had agreed to enfeoff the plaintiff of the land within fourteen days. He had not only failed to do so, but he had enfeoffed a third party.” [Simpson] The defendant brought the case under action of deceit, and the defendant demurred on the grounds that action should have been brought in covenant. Because the defendant was in the custody of the King’s Bench, the plaintiff was forced to bring the action there. [cite]

Judicial Arguments

Judge Ayscough began by arguing against allowing trespass on the case. In doing so, he made an analogy to carpentry: When you contract with a carpenter to make a house, and he does so poorly, then there is trespass on the case, because the action derives from his misfeasance. On the other hand, if the carpenter does not build the house, the action is in covenant.

Judge Babthorpe, in response, drew analogy to two cases: Wangford and Stokes. In Wangford, a tort was found where the defendant enfeoffed a 3rd party Babthorpe then drew a comparsion to hiring counsel who does not appear on the day of the trial. In such a case, the lawyer would be held liable in an action of deceit despite doing no positive action, in much the same way as here.

Judge Paston then attempted to show that a convenant does not always preclude an action of deceit: imagine if a seller bargains to enfeoff party A, but enfeoffs party B instead, and then afterwards enfeoffs party A. Party B will oust party A, but no action of convenant would be available, because the seller enfeoffed party A according to the convenant. There would instead be an action in deceit.

Bathrorpe ???

Ayscough drew a distinction in Babthorpe’s example: there was a positive action, whereas in this case there was none. Chief Judge Newton then claimed that an action of covenant would be pointless, because 1) the defendant had already enfeoffed another, and 2) the day on which the feoffment should have occurred had already passed. Newton went on to argue that an action of deceit “clearly [lay]” because the defendant would be able to demand her money with a writ of debt, and a perfect bargain should require that if one party can bind the other to perform, the bound party should then have remedy against the first.

Judge Fortescue claimed that it was irrelevant whether an action of covenant would be pointless. He also drew an analogy: if seller makes a lease to party A, then makes a lease for the same land to party B who then occupies it, the seller has prevented himself from enabling party A to have the lease, but party A would only be able to bring a writ of covenant.

Paston responded that a writ of covenant does not necessarily preclude a writ of deceit. He made this claim through an example: if someone has a carpenter build them a house of certain specifications, and he does so, but makes the house faulty in ways which are not covered in the covenant (poor materials, etc), there will be not action of covenant, but there will be an action of trespass on the case insofar as the carptenter has done something wrong.

Newton then stated that if the plaintiff wants to bring the case in deceit, that is acceptable, but the plaintiff cannot then bring it in covenant as well.

Fray then drew another analogy: “if the defendant in our case had ousted her feoffee and then enfeoffed the plaintiff, all the convenants would have been fulfilled. Supposee the feoffee afterwards ousted the plaintiff: would he not then have an action of deceit, since he could not have a writ of covenant? I say he would.”

Ayscouch disagreed ?????

Paston then argued that “it is not true that in every bargain there is a covenant. For if I buy a horse from you, without a warranty that he is sound, here is no covenant; and yet there is a bargain, and if the horse has an internal illness I shall have a writ of trespass on my case against you for selling him to me, knowing that he is ill.” Paston therefore believed that the plaintiff should have a writ of deceit on the bargain. Westbury then drew an analogy: if, after the bargain of the present case, the defendant made a secured loan on the land, then feoffed to the plaintiff, there would be a writ of deceit. Therefore, Westbury argued, there should be a writ of deceit here.

Fortescue then referred to an earlier case explained by Paston (though he attributed it to Newton) claiming ????

Result

“[I]n Hilary term 1443 judgment was given for the plaintiff to recover £ 20 damages, as assessed upon a writ of enquiry[,]” although the actual purchase price claimed by the court was £200.

Analysis

According to David Ibbetson, the judges reasoned as followed: because there was an agreement to buy and sell land, the seller would have an action against the buyer for the price. How then could the buyer have no action against the seller of the land? “The difficulty was that there was no action that the plaintiff could obviously bring: not convenant, because there was no deed; not debt or detinue because the action was not for money or chattels, not any real action because no title had yet passed to the plaintiff. The only possibility was the action of trespass on the case.” In order to find a way to justify trespass on the case, the court pointed to the fact the agreement was positively broken by conveying the land to a third party and thereby disabling herself from performing on the contract. The judges used this logical distinction to create misfeasance out of nonfeasancec.

Alfred Simpson takes a different interpretation. He stated, in A History of the Common Law of Contract, that Doige’s Case extended the doctrine of action of deceit, which had already applied to intermediaries in land transactions, to the vendor herself.

Effects

According to Ibbetson, Doige’s Case, along with Somerton’s Case, brought the beginning of contractual non-performance passing through the test of trespass on the case. “In the half-century after [Doige’s case] actions for the failure to convey land, coupled with allegations of disablement, became a routine if not frequent part of the business of royal courts.” Ibbetson also believes that Doige’s case helped blur the line between contract and tort by allowing plaintiff’s to “formulate the defendant’s behavior in terms of the language of wrongdoing rather than the language of rights.”

Simpson emphasizes the importance of the decision of a vendor disabling himself from performing a contract. He states that “it is clear that after the decision in Doige’s Case, it was settled fifteenth-century law that deceit only lay against a vendor if he had so disabled himself.”

Benjamin Geva also mentions that Newton CJ’s dicta that ‘if I bail a certain sum of money to Paston to bail over to Fortescue, now, if Paston does not do this, he will be liable to me in an action of Account and also in an action of Debt’ became a prominent piece of support that “a bailee who has failed to deliver money to the beficiary is chargeable to the bailor, not only in Account, but also in Debt.”

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